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High Court considers motion for Sanford boat to leave territory

fili@samoanews.com

The High Court has taken under advisement the motion by New Zealand based Sanford Limited for a temporary restraining order (TRO) or a permanent injunction which would stop the American Samoa government from barring its fishing vessel San Nikunau from leaving the territory.

Sanford is facing a seven count federal indictment at the federal court in Washington D.C. for alleged violation of the Act to Prevent Pollution from Ships (APPS), as well as conspiracy and obstruction of justice. San Nikunau, the subject of the federal indictment, was detained in the territory in July.

The company, through its local attorney Jennifer Joneson, claims in the local lawsuit that American Samoa law does not authorize ASG Treasury officials to withhold a vessel’s customs clearance for alleged violation of federal pollution laws; however, the government, through the Attorney General’s Office argued that this “assertion is patently false”.

Customs had first issued a clearance for the vessel to leave our shores but later revoked it and Sanford argued that there was no reason for this action, especially when the vessel didn’t commit any crime under American Samoa laws.

Sanford claims the U.S. Coast Guard had asked the ASG, through the Chief Customs Officer, to help the U.S. government “obtain security for the payment of possible fines in connection with its enforcement of federal pollution laws by withholding the San Nikunau’s departure clearance.”

Neither the Treasurer, the Chief Customers Officer, nor their subordinates are authorized to withhold the vessel’s departure clearance “for the purpose of helping the U.S. government enforce federal pollution laws,” according to the complaint.

Assistant Attorney General Jay A. Sayles argued that the Customs division of the Treasury Department has the authority under local law to enforce the laws contained in the United States Code and the Code of Federal Regulations.

He cited relevant provisions, which “explicitly authorize” local Customs division “to revoke or deny clearances” to vessels that are under suspicion or investigation for violating the International Convention for the Prevention of Pollution from Ships (or MARPOL).

“Without the authority to hold polluting vessels, the vessels could simply leave the jurisdiction of American Samoa after violating the relevant pollution provisions and avoid prosecution,” said Sayles in court filings.

Regarding the Plaintiff’s offer to post a surety cash bond of $20,000, Sayles said this amount is “wholly inadequate to recompense ASG for the environmental violations that are being investigated against… San Nikunau” and that violating MARPOL carries a penalty of $25,000 per violation.

According to the local government, the U.S. Coast Guard usually requests surety bonds in the range of $1 million to $1.5 million and signed surety agreements that designate method of service and other agreements for housing witnesses as part of allowing vessels under investigation to leave harbor.

Sanford had stated that after the clearance was issued by Customs, it was later revoked, and argued there is no legal basis for Customs to revoke a clearance for violation of federal law.

ASG disagrees and re-stated that Customs has the authority under local law and therefore plaintiffs do not have a substantial likelihood of prevailing on the merits and the court should deny any injunctive relief sought by Sanford.

ASG further argued that plaintiff has not suffered any “irreparable harm” as claimed by Sanford adding that if the company’s allegation is proven to be true, it could be compensated with money damages. “Irreparable harm is harm that cannot be compensated with money  damages,” Sayles added.

After hearing oral arguments on Wednesday, the High Court took the matter under advisement, while the fishing vessel in question remains in port.

Meanwhile, the U.S. Department of Justice has declined to comment on Samoa News questions pertaining to the local case, with its Washington D.C. based spokesperson Wyn Hornbuckle saying that the federal agency “is not a party to this lawsuit”.



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